Rodriguez v. Brooks et al

Filing 8

ORDER: The Order 6 of 4/24/2017 setting a hearing on the Motion for Temporary Restraining Order/Preliminary Injunction 3 is vacated and the hearing is vacated. Plaintiff show cause by 5/12/2017 why this action should not be dismissed. See order for additional details. Signed by Senior Judge Neil V Wake on 4/25/2017. (LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-17-01200-PHX-NVW

Alberto Rodriguez,

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Plaintiff,

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ORDER

v.
William K. Brooks, Director of Field
Operations, Tucson Field Office, U.S.
Customs and Border Protection; Jason West,
Acting Port Director at Phoenix Sky Harbor
International Airport, U.S. Customs and
Border Protection; Heather Froese, Assistant
Port Director Phoenix Sky Harbor
International Airport, U.S. Customs and
Border Protection; Kimberly Kros,
Supervisory Officer, U.S. Customs and
Border Protection; Todd C. Owen, Assistant
Commissioner of Office of Field Operations,
U.S. Customs and Border Protection;
KEVIN K. Mcaleenan, acting Commissioner
of U.S. Customs and Border Protection; John
F. Kelly, Secretary of Department of
Homeland Security,

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Defendants.

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Plaintiff’s Complaint for Mandamus (Doc. 1) does not appear to state a claim for

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mandamus. It appears to be in substance an action for judicial review of agency action.

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To state a claim for mandamus, or other extraordinary relief, Plaintiff would have to

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allege, among other things, that there is no other procedure or remedy for the allegedly
wrongful agency action. But Plaintiff makes no such allegation.
To the contrary, Plaintiff also alleges jurisdiction of this action under the
Administrative Procedure Act, 5 U.S.C. § § 701 et seq. If there is such jurisdiction, it
would preclude mandamus jurisdiction. Moreover, Plaintiff does not allege whether
judicial review is available under any other statute or whether any limitation on such
review, such as time limits for other review, “expressly or impliedly forbids the relief
which is sought” under the APA. 5 U.S.C. § 702.
Finally, neither the Complaint nor the Motion (Doc. 3) demonstrates why
emergency proceedings are necessary when this has been the status quo for over six
months and Plaintiff waited all that time to bring this action and to seek emergency relief.
IT IS THEREFORE ORDERED that the Order (Doc. 6) of April 24, 2017 setting
a hearing on the Motion for Temporary Restraining Order/Preliminary Injunction (Doc.
3) is vacated and the hearing is vacated.
IT IS FURTHER ORDERED that Plaintiff show cause by May 12, 2017: (1) why
this action should not be dismissed under Rule 12(b)(1) for failure to plead federal
jurisdiction under Rules 8(a)(1); (2) why this action should not be dismissed for failure to
state a claim upon which relief can be granted under Rule 12(b)(6); and (3) why
Plaintiff’s request for emergency relief, however styled, should not be denied as
demonstrably unnecessary because Plaintiff waited for six months to seek it. Plaintiff is
free to amend his complaint of right.
Plaintiff shall serve each Defendant with a copy of this order forthwith.
Dated: April 25, 2017.

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Neil V. Wake
Senior United States District Judge

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